Analysis on ATF’s Regulation of Reviewing Whether Certain Projectiles Are “Primarily Intended for Sporting Purposes”

 Analysis on ATF’s Regulation of Reviewing Whether Certain Projectiles Are “Primarily Intended for Sporting Purposes”

 Thesis:

The ATF’s proposal has its merits, which reflect the fundamental function of government and its nature of public good. However, the proposal doesn’t represent a correct regulation under the ATF’s statutory authority to regulate ammunition.

My response is based on three perspectives of analysis. In the first part, I will discuss the merits reflected from the ATF’s proposal. In the second part, I will elaborate the validity of the ATF’s regulation, especially, based on the analysis on applicability of Chevron case and Haynes case. In the last part, I illustrate the rationality of the ATF’s regulation.

Part I Merits of the ATF’s Proposal

  1. The ATF’s proposal is a revision of GCA rather than a creation of ban

The ATF’s proposal carefully begins with the definition flaw of the exemption of ammunition, which is primarily intended to be used for sporting purposes. The ATF’s proposal is a revision and a development of GCA rather than a creation of ban.

  1. The ATF’s proposal doesn’t violate the cornerstone of the nation

The Declaration of Independence says “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and pursuit of Happiness.”

The framework clarifies that its goal is protecting law enforcement. The regulation aims to protect police officers from death or injury as the result of the criminal use of handgun ammunition capable of penetrating protective vests. The regulation acts in accordance with the concept that the Declaration of Independence holds.

In addition, the framework says that it respects the interests of sportsmen and the industry. It promises that manufacturers are, and will continue to be, free to manufacture projectiles from non-restricted materials, completely independent of the application of this framework or any exemptions. Furthermore, the framework accepts the public review and comments or suggestions on the proposed framework. In this sense, the framework of ATF’s proposal is enacted, based on the concept of democracy and liberty.

  1. “In public administration, there is no connection between revenue and expenditure” (Mises 1944, 84).

        The motivation of public administration is not profit. The nature of bureaucracy is providing public services. The original National Firearms Act imposed a large tax on the making and transfer of firearms. However, the Obama Administration’s M855 Ammo Ban doesn’t care the loss of tax on firearms. Von Mises thought that there is no possibility to measure government’s performance. The actions of government have priceless value. Lacking the profit motivation, the bureaucrats exercise their authorities based on laws and regulations (Mises 1944). The proposal traces the LEOPA legislative history to enhance its validity.

  1. The ATF’s regulation is for public good

Aristotle thought that people are unlikely to be naturally virtuous, so it is the state’s responsibility to ensure that the young are educated in the right way and that adults do not become bad. The ATF’s regulation aims to realize the public good. Rep. Carolyn Maloney said, “It’s shameful that the gun lobby has worked to block an effort that would keep our communities safer from the threat of gun violence.” ATF also argued that ammunition gives criminals easier access and putting police officers in greater danger. The ATF’s regulation aims to provide the public a safer living community without the threat of gun violence.

Part II. Validity of the ATF’s Regulation

  • Introduction to case Chevron U.S.A., Inc. v. Natural Resources Defense Council, In.

The most significant issue in case Chevron:

“Was EPA’s decision to allow States to treat all pollution-emitting devices within the same industry grouping as though within a single “bubble” based on a reasonable construction of the statutory term “stationary source?”

Result:

Yes. The EPA’s definition of the term “source” is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth.

        Chevron gave judicial power reasonability and flexibility in dealing with concrete cases. “Chevron two-step” provides executive agencies sufficient space to use expertise to make the best and reasonable rules and respect their decisions to the largest extent.

Chevron two-step approach to judge the ATF’S proposal:

  1. “To determine whether the statutory language being interpreted is ambiguous or whether the meaning of the provision is clear using traditional tools of statutory construction” (Funk & Seamon 2011, 275). Briefly, to determine whether Congress has directly spoken to the precise question at issue
  2. Meaning of the provision

Clear–the court announces the clear meaning of the statute (the end)

Unclear–The Court doesn’t impose its own construction on the statute (next step)

  1. Determine whether the agency’s interpretation is reasonable or permissible, or if the interpretation is outside the range of ambiguity in the provision

Agency’s interpretation is reasonable/ permissible—the court upholds the agency’s interpretation

First, in ATF’s proposal, the expression of “sporting purpose” is not clear, since all kinds of projectiles could be used for “sporting purpose”, which includes the traditional sports of hunting, competitive target shooting, and skeet and trap shooting. In addition, the ATF has no statutory authority to ban the manufacture of M855 rifle ammunition. The statutory definition of “armor-piercing ammunition” clearly gives the precise standards of utility, material quality, and shape to satisfy the condition of “armor-piercing ammunition”. M855 rifle ammunition doesn’t satisfy all the conditions of “armor-piercing ammunition”; therefore, the ATF does not have the statutory authority to characterize the M855 round as armor-piercing and certainly does not have the authority to ban its manufacture. Characterizing M855 as armor-piercing seems far-fetched. Giving a soft look on ATF’s situation, Obama administration’s interpretation of its regulation will be a common good. The purpose of the framework is to protecting law enforcement. However, the Court could not allow ATF to defend for itself for two reasons:

First, Chevron deference would apply when “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority” (Funk & Seamon 2011, 284). ATF’s proposal doesn’t receive Congress’s delegation. In this sense, ATF has no authority to make rules in the process of carrying the force of law—protecting law enforcement when enforce laws. Secondly, in Chevron, the interest parties involved are two concrete and specific entities. Differently, referring to ATF’s proposal, the one of the interest parties concerned is liberty, the public, which is abstract and broad. Chevron is not applicable in dealing with the validity of the ATF’s proposal.

  • National Firearms Act

“As structured in 1943, the NFA imposed a duty on persons transferring NFA firearms to register them with the Secretary of the Treasury. If the possessor of unregistered firearms applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. And then, State authorities could use the information to prosecute the person.” The regulation is good and efficient to provide the government important information of firearms and registrants for a common good. However, it violates the U.S. Constitution.

The Fifth Amendment of the U.S. Constitution provides, “…nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” A privilege is guaranteed by the Fifth Amendment to the Constitution. It bans a witness from being compelled to give testimony that is self-incriminating.

The Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution. The requirement for possessors of unregistered firearms to register was removed. In addition, a provision was added to the law prohibiting the use of any information from an NFA application and registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration.

In this sense, ATF’s proposal enforces to characterize M855 rifle as armor-piercing and impels people to admit that the general “sporting purpose” guns, which are easy to get online, varying from $240 to $1792, are a potential and serious threat to law enforcement. Similarly, ATF’s proposal craftily impels the public to admit the concept of “gun violence” and commit their “criminal”. The framework violates the Fifth Amendment of the U.S. Constitution. The ATF’s proposal is lawless.

Part III. Rationality of the ATF’s regulation

  1. The duty of public administration

Aristotle thinks that the public are unlikely to be naturally virtuous, so it is the state’s responsibility to establish laws to ensure that the young are educated in the right way and that adults do not become bad. Under the Separation of Powers, the work of making laws belongs to Legislature rather than executive branch. Obama administration has authority to guide the public rather than to stop them.

  1. Improper interpretation of “Gun Threat”

Sen. John Cornyn said, “It’s that fuzzy thinking that it’s the nature of a bullet that causes crime. It’s not the bullets; it’s the people who pull the trigger.” The gun, itself, is not a threat. The subject of gun makes no threat once it is apart from the objects of people. The ban of guns/special bullets makes no sense to reduce criminals and protect law enforcement. The ATF’s regulation lacks rationality to focus on ammunition rather than criminals.

Conclusion:

The ATF’s proposal reflects the nature of government is providing public services, which emphasize the protecting people’s life. The ATF’s proposal also reflects the executive’s respect to legislature. The ATF’s proposal admits and respects the existing laws and regulations. However, the proposal lacks its validity and rationality. The right to keep and bear arms is protected by the Second Amendment to the United States Constitution. The ATF’s proposal challenges the authority of Constitution.

In my opinion, although I don’t think the proposal represents a correct regulation under the ATF’s statutory authority, I think Obama administration’s M855 ammo ban is worth of much more thinking. There is no doubt that the right of keeping and bearing arms is protected by the Constitution. The Constitution says, “That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.” “Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.” We should notice that the protection of “keeping and bearing arm” right is produced in a certain historical background. The right was protected by Constitution to fight against violence of oppression and aggression. However, under the peaceful and democratic social background, the economic growth has become the most important thing for a country and the public. Do we still need bullets to defend our liberty? “Why would a civilian need to walk the streets with a handgun chambered with military-grade, armor-piercing ammunition?” (Jonathan Hutson) Although the ATF’s proposal is lawless, its purpose is worth of further consideration.

 

 

 

 

 

 

 

References:

William F. Funk and Richard H. Seamon. Administrative Law: Examples & Explanations.   Wolters Kluwer Law & Business, New York, 2011

Ludwig Von Mises. Bureaucracy. Yale University Press, 1944

“ATF Framework for Determining Whether Certain Projectiles Are ‘Primarily Intended for Sporting Purposes”, retrieved from: https://www.atf.gov/sites/default/files/assets/Library/Notices/atf_framework_for_determining_whether_certain_projectiles_are_primarily_intended_for_sporting_purposes.pdf

“National Firearms Act”, retrieved from: https://www.atf.gov/content/firearms

“The Obama Administration’s M855 Ammo Ban Is Blatantly Lawless”, http://thefederalist.com/2015/03/09/the-obama-administrations-m855-ammo-ban-is-blatantly-lawless/

Frankel, Todd. “How Angry Gun Owners Shouted Down a Ban on Armor-piercing Bullets”. http://www.washingtonpost.com/blogs/wonkblog/wp/2015/03/10/how-angry-gun-owners-shouted-down-a-ban-on-armor-piercing-bullets/

“ATF shelves bullet ban proposal”, retrieved from: http://thehill.com/regulation/pending-regs/235216-atf-shelves-proposed-bullet-ban

Kentucky Gun Price, retrieved from: http://www.kygunco.com/diamondback-db15-556-75in-bbl-fde-30rd-pistol-69748

Hamilton, Alexander, John Jay, and James Madison. The Federalist. Gideon edition, ed. George W. Carey and James McClellan. Indianapolis: Liberty Fund. 2001.

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